Wrongly seized pot must be returned

November 29, 2007

The decision by a unanimous three-judge panel of the 4th District Court of Appeal to uphold a court order directing Garden Grove police to return marijuana seized from a properly certified patient is a welcome validation of the law approved by voters 11 years ago. Since it clarifies the duty of state and local law enforcement agencies – to uphold state law, not to ignore it and seek to enforce federal law – it should end the noxious and widespread practice of simply seizing medical marijuana from patients who are legally entitled to possess it.

California voters in 1996 approved the Compassionate Use Act, which carved out an exception to the laws against possessing, using or cultivating cannabis, or marijuana, for patients with a recommendation from a licensed physician. A subsequent state law defined implementation protocols and set up a voluntary state ID card system for patients.

However, federal law still prohibits (foolishly in our view) any use or possession of cannabis. That creates a potential source of confusion.

However, the California constitution states that state officials are bound to uphold and enforce California law, even if there is an appearance of conflict with federal law, unless and until a federal court has ruled that the state law is invalid due to the doctrine of federal supremacy. That has not happened.

During Supreme Court oral arguments in the Oakland Cannabis Cooperative case, Justice Ruth Bader Ginsburg asked the government attorney why she was not invoking federal supremacy. She responded that this was one of many instances where state and federal laws differed; the issue in this case was whether federal law could permit a medical exception.

Now that the appellate court has clarified the issue, state Attorney General Jerry Brown and Gov. Schwarzenegger should issue guidelines to all law enforcement personnel. They could be modeled on those of the California Highway Patrol, which decided two years ago to stop seizing marijuana from patients.